Ochieng v Attorney General (Civil Appeal E108 of 2021) [2025] KECA 1895 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs.100,000 award for torture by a police officer, ruling the arrest was lawful and rejecting extra damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant discharged the burden of proof on a balance of probabilities that his rights were violated
- 2.Whether the trial court erred in finding the arrest lawful and in failing to find violation of Articles 29, 33, 48, 49 and 51 of the Constitution
- 3.Whether the award of Kshs.100,000/= as general damages was inordinately low as to call for interference by this Court
- 4.Whether the trial court erred in declining to award the appellant special damages
Key legal issues
#Whether the appellant proved violation of his rights to freedom and security and against unlawful arrest and detention
The arrest was lawful, the OB extract showing the appellant was arrested for libel; claims under Article 33 and Article 48 also failed for lack of precise evidence.
The Court re-evaluated the record and found the OB extract indicated the appellant was arrested for libel, making the arrest lawful. The Article 33 claim failed for want of precise evidence of violation, and the Article 48 claim failed because his advocate was notified of the arrest and a representative was allowed access to him, so there was no proof of denial of access to justice.
Whether the general damages award of Kshs.100,000/= for violation of freedom from torture was inordinately low
The award was not inordinately low and would not be interfered with; the injuries were not severe and caused no disability.
Applying Kemfro Africa and Catholic Diocese of Kisumu v Tete, an appellate court interferes with quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate. On re-evaluation of the medical report, the injuries were generalised aches without temporary or permanent disability, so the award was commensurate.
Whether special damages of Kshs.1,000/= should have been awarded
Special damages were not particularised in the petition and therefore could not be awarded.
Special damages must be specifically pleaded and strictly proved. Although the appellant produced an undisputed cash sale receipt, he only prayed for Kshs.1,000/= without giving particulars of what constituted the special damages, and did not state his claim with precision. The claim therefore could not be sustained on appeal.
The purpose of constitutional remedies and the appellate court's discretion on damages in constitutional violation cases
The discretion is limited by what is 'appropriate and just'; the primary purpose of a constitutional remedy is to vindicate rights and deter future infringements, not to compensate or punish.
Relying on Gitobu Imanyara v Attorney General, the Court noted that in constitutional violation cases the award must be appropriate and just according to the facts and circumstances of the particular case, and the primary purpose of the remedy is vindicatory and deterrent rather than compensatory or punitive.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions reached by the trial judge should stand, giving reasons either way.
- An appellate court will not disturb an award of damages unless the trial court proceeded on wrong principles or misapprehended the evidence in material aspects, arriving at an inordinately high or low figure representing an entirely erroneous estimate.
- Special damages must be specifically pleaded and strictly proved; each particular type must be pleaded and proved.
- The burden of proof lies on the person alleging facts on which a court is asked to give judgment.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution of Kenya, 2010 (the judgment does not cite the specific appellate provision)
Relief refused
#Setting aside or varying the judgment of the High Court and enhanced damages for constitutional violations
The Court found the general damages award not inordinately low and the arrest lawful on the evidence, and the appeal lacked merit in its entirety
Special damages of Kshs.1,000.00
The special damages were not particularised in the petition; particulars of what constituted the special damages were not given
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that this appeal lacks merit in its entirety and is dismissed with no order as to costs.
This being a first appeal, the Court’s mandate is to re-evaluate, re-assess and re-analyze the evidence on the record and determine whether the conclusions reached by the learned judge should stand, and give reasons either way.
The law on special damages is well settled. The claim must be specifically pleaded and strictly proved. A claim for each particular type of special damage must be pleaded and each must be proved.
it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.
the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements
we find that the award of Kshs.100,000 as general damages is not inordinately low to warrant our interference by this Court.
Issues in the judgment
#Internal contradiction on the dates of detention: the introductory paragraphs state the appellant was arrested on 29th and detained until 30th October 2014, while the appellant's contention refers to detention on 29th and 30th October 2019.
The judgment inconsistently renders the authority Kemfro Africa Limited, giving two different citations for the same case at different points.
The judgment refers to the appeal being against 'the respondents' although there is only one respondent named.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Attorney General (Civil Appeal E108 of 2021) [2025] KECA 1895 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1895/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.